Citation Nr: 18132385
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 13-13 660
DATE:	September 6, 2018
ORDER
Entitlement to a higher initial rating for a service-connected left shoulder disability, currently evaluated as 20 percent disabling, is denied.
Entitlement to an increased (compensable) rating for service-connected bilateral hearing loss is denied.
FINDINGS OF FACT
1. Throughout the rating period on appeal, the Veteran's degenerative arthritis of the left (minor) shoulder acromioclavicular (AC) joint is manifested by disability no worse than limitation of motion of the minor arm to shoulder level.
2. The weight of the probative evidence shows that the Veteran’s bilateral hearing loss is manifested by no worse than Level I hearing acuity in the right ear and Level I hearing acuity in the left ear.
CONCLUSIONS OF LAW
1. The criteria for an initial rating in excess of 20 percent for degenerative arthritis of the left shoulder AC joint have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5201, 5203.
2. The criteria for an increased rating in excess of 0 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. 4.85, 4.86, Diagnostic Code 6100.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from October 1972 to October 1996.
This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in October 2010 that in pertinent part, granted service connection and a 10 percent rating for degenerative arthritis of the left shoulder acromioclavicular (AC) joint, effective June 21, 2010. The Veteran appealed for a higher rating.
This case also comes to the Board from a September 2014 rating decision that denied an increase in a noncompensable rating for service-connected bilateral hearing loss.
The Veteran testified before the undersigned Veterans Law Judge at a July 2016 videoconference hearing; a transcript of the hearing is of record.
In December 2016, the Board previously remanded this case to the Agency of Original Jurisdiction (AOJ) for additional development.
In a June 2018 rating decision, the AOJ granted a higher 20 percent rating for the service-connected left shoulder disability, effective June 21, 2010. The case was subsequently returned to the Board.
Increased Ratings
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10.
Governing law provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14. In Esteban, the United States Court of Appeals for Veterans Claims (Court) found that when a Veteran has separate and distinct manifestations from the same injury he should be compensated under different Diagnostic Codes.
When it is not possible to separate the effects of the service-connected disability from a non-service-connected disability, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).
When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
The Veteran’s lay statements are considered competent evidence when describing her symptoms of disease or disability that are non-medical in nature. Barr v. Nicholson, 21 Vet. App. 303 (2007), Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His lay statements and testimony regarding the severity of his symptoms must be viewed in conjunction with the objective medical evidence of record and the pertinent rating criteria. And the ultimate probative value of his lay testimony and statements is determined not just by his competency, but also his credibility to the extent his statements and testimony concerning this is consistent with this other evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)). See also 38 C.F.R. § 3.159 (a)(1) and (a)(2).
1. Entitlement to a higher initial rating for a left shoulder disability is denied.
The Veteran contends that his service-connected degenerative arthritis of the left shoulder AC joint is more disabling than currently evaluated. 
The AOJ has rated the service-connected left shoulder disability as 20 percent disabling throughout the rating period on appeal, under Diagnostic Codes 5010-5203. 38 C.F.R. § 4.71a.
When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 
The Board notes that the Veteran also has a service-connected disability of degenerative radiculopathy of the left upper extremity, secondary to service-connected degenerative disc disease of the cervical spine. This disability is rated as 20 percent disabling based on neurological symptoms, including pain, in the left arm. The Veteran has also been diagnosed with other non-service-connected left shoulder disabilities. See report of April 2018 VA examination. Symptoms of these other disabilities will not be considered when evaluating the service-connected arthritis of the left AC joint, and rating the left upper extremity pain under more than one Diagnostic Code would constitute impermissible pyramiding. 38 C.F.R. § 4.14.
In his February 2011 notice of disagreement, the Veteran asserted that a separate 10 percent rating should be assigned for arthritis of the left shoulder under 38 C.F.R. § 4.58. The Board finds that this regulation is inapplicable to the disability rating for the left shoulder, as that regulation pertains to service-connected amputation of a lower or upper extremity, which is not present here.
Diagnostic Code 5010 concerns arthritis due to trauma; it requires establishment by X-ray evidence. Diagnostic Code 5010 is to be rated the same as Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative or traumatic arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. However, in the absence of limitation of motion, the disability is to be rated as 10 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups; and as 20 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Disability ratings under Diagnostic Code 5003 is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added. Multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints. 38 § C.F.R. 4.45.
Under the laws administered by VA, disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203 and include ratings based on limitation of motion. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. See 38 C.F.R. § 4.69. Here, as the evidence shows that the Veteran is right-hand dominant, his left shoulder is his minor shoulder for rating purposes.
Under Diagnostic Code 5201, limitation of motion of the minor arm at shoulder level warrants a 20 percent evaluation; limitation of motion of the minor arm to midway between the side and shoulder level warrants a 20 percent evaluation; and limitation of motion of the major arm to 25 degrees from the side warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5201. 
For VA purposes, normal range of motion of the shoulder joint is from 0 to 180 degrees of forward flexion and from 0 to 180 degrees of abduction. 38 C.F.R. § 4.71, Plate I. Forward flexion is the range of motion from the side of the body out in front and abduction is the range of motion from the side of the body out to the side. Id. Flexion and abduction at shoulder level is 90 degrees. Id. Normal internal and external rotation is from 0 to 90 degrees. Id. 
Under Diagnostic Code 5203, a maximum 20 percent rating for the minor arm requires nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. The disability can also be rated on impairment of function of the contiguous joint.
On VA examination of the left shoulder disability in August 2010, the examiner noted that the Veteran was right-hand dominant. The Veteran complained of significant daily chronic pain. He also reported deformity, instability, stiffness, weakness, incoordination, and decreased speed of joint motion. He denied giving way, episodes of dislocation of subluxation, locking, and effusion. Range of motion was as follows: flexion from 0 to 110 degrees, abduction from 0 to 100 degrees, internal rotation from 0 to 45 degrees, and external rotation from 0 to 70 degrees. The examiner noted that pain began at 30 degrees of flexion, 30 degrees of abduction, and at 10 degrees of internal and external rotation. An X-ray study showed AC joint arthropathy and degenerative changes. There was no fracture, subluxation or dislocation.
On December 2015 VA examination of the cervical spine, the examiner noted that there was full sensation of the left shoulder area, and he reported severe constant pain in the bilateral upper extremities.
A May 2016 magnetic resonance imaging (MRI) scan of the left shoulder showed AC osteoarthritis and mild dorsal surface fraying.
At his July 2016 hearing, the Veteran testified that he had the following symptoms due to his left shoulder disability: limitation of motion and pain on motion. He stated that he could only raise his arm to about shoulder level. Later he stated that it really hurt when he tried to lift his arm over his head. He stated that he could only lift about 25 pounds with that arm, but did not otherwise have difficulty grasping or carrying. He stated that he had shooting pain from his shoulder up to his neck. He reported daily pain, and said he sometimes could not sleep on that side. He stated that he mostly drove using his right hand, and said he was right-hand dominant. He denied dislocations. He stated that surgery had been recommended. He stated that he worked as a letter carrier, and that was where he got most of his pain. He said he had to case mail with his right hand, because of the pain when using his left arm over his head. He took pain medication for his left shoulder disability.
A May 2017 private MRI scan of the left shoulder showed minimal joint effusion, and minimal fluid in the subacromion, subdeltoid bursa and AC joint. There were prominent hypertrophic changes of the AC joint. The Veteran may have mild impingement syndrome. There was mild increased signal intensity in the long head of the biceps tendon which may represent tendonitis.
On VA examination of the left shoulder in April 2018, the examiner diagnosed rotator cuff tendonitis, AC joint osteoarthritis, and prior AC joint separation in the 1970s. The Veteran reported that he sometimes felt popping in the shoulder, and pain, which he rated at the 10/10 level, or 8/10 with medication. He stated that he recently retired from his job with the postal service, where his job responsibilities included lifting up to 70 pounds. On examination of the left shoulder, flexion was from 0 to 130 degrees, abduction was from 0 to 125 degrees, and external and internal rotation was from 0 to 90 degrees. The examiner indicated that the limitation of motion affected overhead activities. Pain was noted on flexion and abduction, and caused functional loss. Pain was noted on flexion and abduction. There was no pain with weightbearing, and no objective evidence of localized tenderness, pain to palpation, or objective evidence of crepitus. There was no additional functional loss or range of motion loss after repetitive use testing. There were no flare-ups. Strength was full and there was no ankylosis. A rotator cuff condition was suspected. There was no shoulder instability, dislocation, or labral pathology suspected. 
The examiner opined that the service-connected AC joint condition did not affect range of motion of the shoulder (glenohumeral) joint. There was tenderness on palpation of the AC joint. The functional impact of the left shoulder disability was a limitation on overhead lifting. The examiner opined that the Veteran's pain was more likely from the left shoulder than from radiculopathy. The examiner stated that the Veteran has several left shoulder conditions, only one of which was service-connected: AC joint arthritis. The examiner opined that his other left shoulder conditions are likely bilateral and more likely from his repetitive motions as a mail carrier lifting up to 70 pounds as a job requirement.
Upon review of the record, the Board finds that a rating in excess of 20 percent is not warranted for the service-connected arthritis of the AC joint of the left shoulder at any point during the period under review. The range of motion findings described above do not warrant a higher evaluation.  Facially, the criteria for a higher initial rating based upon limitation of extension under DC 5201 have not been met.
However, the Board must also consider additional functional loss due to symptoms such as pain, repetitive motion, and flare-ups.  38 C.F.R. 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. at 44; Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board has reviewed and considered the Veteran’s assertions in support of his claim, including his reports of pain, which increased with overhead lifting; weakness, and incoordination. However, the objective medical evidence of record is of greater probative value as to the Veteran’s level of impairment than his assertions. Moreover, even considering his subjective complaints of pain and other symptoms described in DeLuca, limitation of motion of the minor arm to 25 degrees from the side and/or limitation of motion of the major arm to midway between the side and shoulder level has not been shown such that a higher rating would be warranted. See Thompson, 815 F.3d at786. The evidence of record shows that motion of the Veteran’s left arm is limited to no less than shoulder level, or 90 degrees, which is properly rated as 20 percent disabling under Diagnostic Code 5201. The Veteran denied experiencing flare-ups on the most recent VA examination and none of the other VA examiners have provided an estimated motion loss for any previous periods of flare-ups from increased activity. Sharp, supra.
Finally, the Board has considered whether there may be any other relevant Diagnostic Code that would allow for a higher disability rating throughout the appeal period. However, there is no evidence of ankylosis of the scapulohumeral articulation, nor impairment such as nonunion, malunion or recurrent dislocation of the humerus, to warrant consideration under Diagnostic Codes 5200 and 5202. A higher rating is not warranted under Diagnostic Code 5203 as the Veteran is already in receipt of the maximum rating under this code.
The Veteran is competent to report on symptoms and credible in his reports of pain and his belief that he is entitled to a higher rating. His competent and credible lay evidence, however, must be contrasted and considered with the competent medical evidence that evaluates the extent of the shoulder impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran’s complaints, and with the service-connected AC joint arthritis disability. The VA examiner has linked many of the Veteran's current symptoms to non-service-connected shoulder disabilities. For these reasons, greater evidentiary weight is placed on the examination findings with regard to the type and degree of impairment related to the specific left shoulder service-connected disability on appeal.
Additionally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
In sum, the weight of the evidence demonstrates that the Veteran’s AC joint arthritis of the left shoulder does not warrant a higher rating in excess of the 20 percent rating assigned under the relevant diagnostic codes throughout the rating period on appeal. As the preponderance of the evidence is against the claim for a higher, the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
2. Entitlement to an increased rating for bilateral hearing loss is denied.
The Veteran contends that his service-connected bilateral hearing loss is more disabling than currently evaluated. In his March 2015 notice of disagreement, he asserted that a 10 percent rating is warranted.
Throughout the rating period on appeal, the Veteran’s service-connected bilateral hearing loss has been rated as noncompensable under Diagnostic Code 6100. 38 C.F.R. § 4.86.
The Veteran contends that his bilateral hearing loss is more disabling than currently evaluated. At his July 2016 hearing, the Veteran testified that his wife told him that he turns up the volume too loud on the television and radio. He said he had difficulty understanding conversation, and he had ringing in his ears.
The assignment of a disability rating for service-connected hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 
The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. 4.85. Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 Hertz.
For VA rating purposes, an examination for hearing impairment must meet the four requirements of 38 C.F.R. 4.85 (a). It must be conducted by a state-licensed audiologist, the examination must include a controlled speech discrimination test (Maryland CNC), the examination must include a puretone audiometry test, and the examination must be conducted without the use of hearing aids.
To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. 4.85. To evaluate an individual’s level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. 38 C.F.R. 4.85 (b). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. 4.85 (e). 
Under 38 C.F.R. 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. 4.86 (a). Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Level. 38 C.F.R. 4.86 (b). As an initial matter, the Board finds that an exceptional pattern of hearing under 38 C.F.R. 4.86 in the context of the Veteran’s most recent VA examination has not been shown and that regulation is inapplicable.
On VA examination in February 2014, audiometric testing revealed right ear decibel thresholds of 25, 20, 20 and 25, and left ear decibel thresholds of 20, 5, 5, and 15, at the respective frequencies of 1000, 2000, 3000, and 4000 hertz. Speech recognition scores using the Maryland CNC Test were 100 percent in each ear. The examiner diagnosed bilateral sensorineural hearing loss and indicated that the Veteran’s hearing loss impacted the ordinary conditions of daily life, including the ability to work. The Veteran reported that he had to turn the sound on the television up too loud.
On VA examination in July 2014, audiometric testing revealed right ear decibel thresholds of 30, 15, 15, and 20, and left ear decibel thresholds of 30, 10, 10, and 15, at the respective frequencies of 1000, 2000, 3000, and 4000 hertz. Speech recognition scores using the Maryland CNC Test were 96 percent in each ear. The examiner diagnosed bilateral sensorineural hearing loss and indicated that the Veteran’s hearing loss impacted the ordinary conditions of daily life, including the ability to work. The Veteran reported that he had to turn the sound on the television up loud.
On VA examination in April 2018, audiometric testing revealed right ear decibel thresholds of 30, 20, 25, and 25, and left ear decibel thresholds of 25, 15, 15, and 20, at the respective frequencies of 1000, 2000, 3000, and 4000 hertz. Speech recognition scores using the Maryland CNC Test were 96 percent in each ear. The examiner diagnosed bilateral sensorineural hearing loss and indicated that the Veteran’s hearing loss impacted the ordinary conditions of daily life, including the ability to work. The Veteran reported that he had to turn the television up loud, and his wife told him he could not hear well. 
The findings on the Veteran’s VA audiometric studies in February 2014, July 2014 and April 2018 correlate to a designation of level I hearing in the right ear and level I hearing in the left ear, using Table VI. Table VII of 4.85 provides for a 0 percent evaluation under Diagnostic Code 6100 when those levels of hearing are demonstrated.
The Board appreciates the difficulties which the Veteran says he experiences because of his hearing loss. However, according to the audiological test results during the pendency of the appeal, compared to the rating criteria, a rating in excess of 0 percent for his bilateral hearing loss is not warranted. See Lendenmann, supra. In sum, the Board finds that for these reasons and bases, the preponderance of the evidence is against an increased rating for bilateral hearing loss, throughout the rating period on appeal. 38 C.F.R. 4.85, Diagnostic Code 6100. 
The Board notes that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, the VA examiners noted that the Veteran reported hearing difficulty which affected his daily and occupational activities. The Board finds that such functional impairment, in addition to the Veteran’s other reports, has been appropriately considered but the overall evidence, as previously discussed, fails to support assignment of an increased evaluation. 
The Board finds that the rating criteria contemplate the Veteran’s bilateral hearing loss disability. The Veteran’s hearing loss is manifested by decreased hearing acuity. A comparison between the level of severity and symptomatology of the Veteran’s assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran’s disability level and symptomatology, including his difficulty hearing and understanding speech. 
The Board notes that this conclusion is consistent with the Court’s holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (“[W]hen a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria”). The Board further finds that other than difficulty hearing or understanding speech and television programs, the record on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss.
The Veteran has not raised any other issues with respect to the increased rating claim, nor have any other assertions been reasonably raised by the record. See Doucette, 28 Vet. App. at 369-70.
As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for an increased rating for bilateral hearing loss must be denied. 38 U.S.C. 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
 
S. L. Kennedy
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. L. Wasser, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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